How PETA's Lawsuit Against Sea World Could End Factory Farming

Expanding the Constitution to include animals that are non-human could lead us to reconsider how we treat the sentient mammals we farm

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Anyone who has taken a basic American history class knows something about the Thirteenth Amendment. Adopted December 6, 1865, the amendment outlawed slavery and involuntary servitude (with the exception of punishment for a crime) throughout the Unites States. The act effectively ended the fight to abolish slavery and became a cornerstone in the fight for civil rights at home and abroad. It seems no exaggeration to say that the Thirteenth Amendment changed the course of human history.

Now it's in a position to change the course of non-human history. And the reason, oddly enough, has to do with orca whales. At the Sea World quarters in California and Florida there are five orcas that People for the Ethical Treatment of Animals (PETA) has, in a lawsuit recently filed in a U. S. District Court, described as living in involuntary servitude. The mammals were captured in the wild, confined, and forced to perform cheap tricks for human spectators. In the ocean, these animals swim 75 miles a day. At Sea World, they live in a tank. This, PETA claims, qualifies as involuntary servitude, and is thus a violation of the Thirteenth Amendment.

Orcas form complex societies, teach their young, and communicate through a beautifully intricate series of clicks, whistles, and pulsed calls.

Perhaps this suit sounds like prime fodder for the Colbert Report (and, alas, it has been). But in fact it raises a profoundly important question, one that several decades of animal rights activism and scholarship have prepared us to explore: Does a non-human animal with obvious intelligence, emotional capacity, social skills, and personal interests warrant protection under the U.S. Constitution?

Critics will instinctively dismiss such a possibility as frivolous, if not a crass publicity stunt. And it's true that PETA has done itself no favors in the past by resorting to sensational tactics to achieve noble goals. But to reject this case because you happen to find PETA offensive would be to ignore the compelling factors surrounding it.

The first is that some exceptionally learned legal minds have spoken in support of animal rights. Consider the opinion of Lawrence Tribe, Harvard Law Professor and renowned constitutional scholar. Speaking directly about the PETA suit, he explained to Bruce Friedrich, for a story in the Georgetown Law Weekly: "It seems to me no abuse of the Constitution to invoke [the Thirteenth Amendment] on behalf of non-human animals cruelly confined for purposes of involuntary servitude." He added, "people may well look back on this lawsuit and see in it a perceptive glimpse into a future of greater compassion for species other than our own."

Next, there are the scientists. Experts claim that orcas are among the most intelligent species on Earth. Naomi Rose, a marine mammal biologist with the Humane Society of the United States, cites research suggesting that whales, dolphins, and porpoises have the cognitive sophistication of 3- to 4-year-old humans. A neuroscientist who measures encephalization quotients -- brain to body size ratio -- of mammals, ranks orcas between great apes and humans. The cortex of an orca has been shown to be more complex than the human cortex. Orcas form complex societies, teach their young, and communicate through a beautifully intricate series of clicks, whistles, and pulsed calls. They undoubtedly experience emotions, including suffering.

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James McWilliams is an associate professor of history at Texas State University, San Marcos, and author of Just Food: Where Locavores Get It Wrong and How We Can Truly Eat Responsibly.

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